2. EJECTMENT 9-TITLE. The rule followed that a plaintiff in an action in ejectment must rely on the strength of his own title, and not on the weakness of his adversary's title. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 16-29; Dec. Dig. 9.] Appeal from District Court, Dickinson County. Action by George Haseltine against Fred Nuss, Sr., and others. From judgment for defendants, plaintiff appeals. Affirmed. H. L. Humphrey, of Abilene, for appellant. Frank A. Green, of Herington, for appellees. Half DAWSON, J. This was an action in ejectment brought by the appellant to recover possession of a tract of land 30 feet wide and 118 feet long, being the half of a platted but vacated street adjacent to a town lot in the city of Herington, Dickinson county, Kan. The plaintiff claims this tract under a sheriff's deed issued in 1913. The defendants are in possession and claim under a tax deed to the adjacent and abutting lot issued in 1901. The original town of Herington was platted some time prior to October 8, 1884, but was not then an incorporated city. One M. D. Herington then owned the lot adjacent to the tract of land in controversy. The board of county commissioners vacated the street on October 8, 1884. of the vacated street adjacent to defendants' lot and abutting thereto is the tract of land involved in this lawsuit. In 1885, Herington conveyed the entire block (except two lots not here pertinent) in which defendants' lot is located to the Topeka, Salina & Western Railroad. The defendants and their grantors have been in possession of the adjacent and abutting lot and of the tract in controversy for several years, and a hotel was erected by the defendants' grantors on the disputed tract about eight years before this action was begun. The fifteen years' prescriptive title has not yet matured. Defendants' title, aside from their rights by possession and improve ments and possibly estoppel, is founded on a tax deed issued in July, 1901. This tax deed shows some possible infirmities, and the chain of title thereunder culminating in defendants is not very clearly deraigned. In 1891, George Haseltine, the appellant, recovered a judgment against M. D. Herington and by successive executions and by a proceeding of controverted regularity in 1906 to revive the judgment Haseltine kept his judgment alive until August, 1912, when the tract of land in dispute, the half of the street vacated in 1884 adjacent to and abutting the lot claimed by defendants and upon which their hotel was situated, was levied upon and sold as the property of M. D. Herington to satisfy Haseltine's judgment. Haseltine bid in the property. The sale was confirmed and a sheriff's deed issued to Haseltine in March, 1913. A jury was waived, the cause was tried, the evidence introduced, and the plaintiff's petition praying for possession of the property denied. Plaintiff appeals. [1] The principal question concerns the effect to be given to section 5 of chapter 190 of the Session Laws of 1877 (Comp. Laws of 1885, § 6545), which provides: "The alleys, streets or other public reservations so vacated shall revert to the owner or owners of lots adjacent or abutting thereto, according to the frontage of said lots or land." Does not the plain and unequivocal language of this statute settle this controversy? The half of the street adjacent to and abutting the defendants' lot became by virtue of the vacation of the street and by operation of the statute a part of defendants' lot. Mr. Justice Brewer, in Atchison, T. & S. F. R. Co. v. Patch, 28 Kan. 471, 474, said that in such a situation the vacated street, or the proper part of it, became, "as it were, a part of the lot-something in the nature of an accretion to it." Of course, that distinguished jurist did not mean that it was exactly like land made imperceptibly by slow deposit and receding waters, but that the legal effect was the same, and that the vacated property inured, at least as against all claimants except the public, to the benefit of the abutting landowner. The same question was considered in City of Belleville v. Hallowell, 41 Kan. 192, 21 Pac. 105, and in Challiss v. Depot & R. Co., 45 Kan. 398, 404, 25 Pac. 894, 897. In the latter case, the Patch Case was discussed; the court saying: "The court did not at that time determine whether upon the vacation of the street it reverted to the original proprietor or passed to the adjacent lot owners. The latter view has since been adopted by this court. City of Belleville v. Hallowell, 41 Kan. 192 [21 Pac. 105]." These decisions seem to have settled the law in this state. In a note in 26 L. R. A. 661, it is said: "The status of the vacated portion of a street cannot be regarded as an open question in Kansas, it being held in Challiss v. Atchison Union the General Statutes of 1889, that the portion Depot & R. Co., supra, under the provisions of of the street in front of the condemned lot passed, as an accretion or as appurtenant thereto, to the owner of the property." [2] From the foregoing it appears that the tract of land in dispute is to be considered part and parcel of the lot claimed, occupied, and improved by defendants. No shadow of title to this lot remained in M. D. Herington at the time of the sheriff's deed to Haseltine in 1913. The sheriff did not sell any land belonging to Herington, and Haseltine acquired no claim to defendants' lot and its statutory accretion thereunder. This being true, it is of no consequence that there may be infirmities in defendants' title. It will answer their purpose (Mooney v. Olsen, 21 Kan. 691) until it is attacked by some one holding a better title, for it is elementary law that a plaintiff must depend upon the strength of his own title, not on the weak For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kan.) MANHATTAN STATE BANK v. HAID ness of his adversary's. State v. Stringfellow, ment for defendants, plaintiff appeals. Af- This renders unnecessary a consideration of other questions presented. It was not error to admit evidence to show that Herington had conveyed away his title to the lot and consequently to the abutting vacated street in 1885. Such evidence possibly might not avail the defendants if they were the moving parties; but, in scrutinizing the title under which Haseltine claimed, it was competent to show that he as the moving party had no title under which to proceed against the de fendants. The death of appellant is suggested. The motion to revive and substitute Paul N. Gleissner is allowed. The motion of appellees to introduce evidence not considered below, apparently in reliance of section 580 of the Civil Code (Gen. St. 1909, § 6175), need not be considered. But see Hess v. Conway, 93 Kan. 246, 144 Pac. 205. The judgment is affirmed. All the Justices concurring. firmed. C. B. Daughters, of Manhattan, for appellant. A. C. Wilson and Thomas Harley, both of Lawrence, and Codding & Codding, of Leavenworth, for appellees. BURCH, J. The action was one by a creditor to determine the true ownership of land which it was claimed belonged to the debtor, in order that the land might be sold to advantage to satisfy the creditor's claim. The defendant the debtor's wife, who asserted title, prevailed, and the plaintiff appeals. [1] The district court made findings of fact the correctness of which is not disputed. The findings state that Barbara Haid, the owner of the land, died testate. The will was duly probated, and F. H. Haid and Edward Haid, sons of the testatrix named as executors in the will, duly qualified as such. The will provided that the real and personal property belonging to the testatrix at the time of her death should be sold and converted into money. Certain obligations were to be satisfied, and certain sums were to be invested, and MANHATTAN STATE BANK v. HAID et ux. the income paid to grandchildren until they (No. 19938.) (Supreme Court of Kansas. (Syllabus by the Court.) 1 CONSTRUCTION OF 1. CONVERSION 15 The provisions of a will interpreted, and held, that it did not confer on the executors naked power to sell real estate and distribute the proceeds to heirs who took title by descent, but that on the death of the testatrix an equitable conversion of the real estate into personalty took place and title passed to the executors to enable them to carry out certain trusts created by the will. [Ed. Note.-For other cases, see Conversion, Cent. Dig. §§ 28-37, 52; Dec. Dig. 15.] EXECUTOR'S DEED 2. ESTOPPEL 31 -- became of age. Subject to these provisions Feb. 12, 1916.) the proceeds derived from the sale of the property were to be divided among the five children of the testatrix in certain proportions. One child, however, was to receive the income only of her share, for her life, when her share was to become the property of her children. The executors were made trustees to invest funds to the best advantage, and otherwise carry out the trusts created. The children of the testatrix, being adults, agreed upon a division of the property, some taking land, and some taking money. The agreement was not in writing, but was fully performed. By the agreement the land in controversy was apportioned to F. H. Haid. In order to carry out the agreement an executors' deed was made. It was supposed that an executors' deed naming one of the executors as grantee would not be valid. F. H. Haid's wife, Elizabeth Haid, was made the grantee in the deed, which was approved by the probate court. F. H. Haid delivered the deed to his wife, and did so with the firm belief that it placed title to the land in her. The land was occupied at the time by F. H. and Elizabeth Haid as their homestead, and neither one of them was then indebted to anybody. The deed was dated June 26, 1905, was recorded on June 29, 1905, and title to the land has ever since remained where it then was. In the year 1910 F. H. Haid became indebted to the plaintiff, and, if the land belongs to him, it is subject to sale under an attachment levied in October, 1912. RIGHTS OF CREDITORS. [Ed. Note. For other cases, see Estoppel, County. Douglas State Bank The plaintiff contends that the will gave the executors no title to any part of the estate of the testatrix; that they were given naked power to sell and distribute the pro ceeds to the heirs, who were also devisees; that F. H. Haid took title by descent from his mother and became owner in severalty by the partition agreement; that the executors' deed had no office to perform so far as a transfer of title was concerned; that it conveyed nothing to Elizabeth Haid; and consequently that the land is the property of F. H. Haid. There is abundant authority that an equitable conversion of the real estate took place to enable the executors to carry out the trusts created by the will. Express words giving title to executors are not essential to equitable conversion when such is the necessary effect and intention of the will. It was impossible to carry out this will unless the entire estate passed as personalty. The persons who were to receive shares of the estate under the will were not those who would inherit if there were no will. There were five heirs, but one of them was deprived of her share of the estate by the will and was given merely an income for life. The will spoke from the date of the death of the testatrix, the conversion took place at that time, rights were fixed at that time, and the real estate did not descend as such to Barbara Haid's heirs. It was permissible for the beneficiaries of the will to agree upon a division of executors would not be valid if one of them were the grantee. The deed was made to Elizabeth Haid, was delivered to her by F. H. Haid, and was delivered with the firm belief that it placed title in her. The plaintiff says the court did not find that F. H. Haid "intended" to place title in his wife. The court did find the facts concerning the conduct and the belief of adult, rational persons, and these are reliable indexes of intention. It would be quite remarkable if F. H. Haid did not intend to do what he firmly believed he was doing. Whether the deed be considered as a conveyance of land or as an assignment by the executors of F. H. Haid's share of the estate, considered as personalty, he executed and delivered the deed to Elizabeth Haid in order to invest her with title to the share of the estate allowed to him by the partition agreement. Whether the instrument were valid or invalid as a conveyance or as an assignment, whether it carried any title to Elizabeth Haid or not, F. H. Haid is estopped to deny that the deed had the effect which it was designed to produce, and is estopped to claim under a title which he possessed at the time the deed was delivered. This would be true even if equitable conversion had not taken place. Of the estate satisfactory to themselves and to only in virtue of F. H. Haid's right to it. course, the plaintiff can appropriate the land agree to accept property in kind to avoid a Cases relating to estoppel of one who exsale. The parol partition, however, had no effect on the devolution of title at the time ecutes a deed as executor or administrator to of the death of the testatrix. After the par-lated in a case note in 21 L. R. A. (N. S.) at set up an existing title in himself are coltition F. H. Haid held the title to no more land by descent from his mother than before page 60. A later case reported in the same the partition. The entire estate was in con- series, 32 L. R. A. (N. S.) 854, is that of Bliss templation of the law personalty, the legal V. Tidrick, 25 S. Dak. 533, 127 N. W. 852, title to which was vested in the executors to accomplish the purposes of the will. The plaintiff says it has been decided by this court that, where executors are merely authorized to sell and divide the proceeds among heirs there is no conversion, citing Bank v. Murray, 86 Kan. 766, 121 Pac. 1117, 39 L. R. A. (N. S.) 817; Ward v. Benner, 89 Kan. 369, 131 Pac. 609; Smith v. Hensen, 89 Kan. 792, 132 Pac. 997; McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535. The effect of these decisions is correctly stated. They do not govern the present controversy, however, because the will of Barbara Haid did not invest her executors with naked authority to sell and to divide proceeds among her heirs. [2] Conversion of the land into personalty is not insisted upon as forbidding its seizure by attachment in 1912 if it then belonged to F. H. Haid. Conversion is important, however, in considering the title of Elizabeth Haid. When the parol partition was made F. H. Haid did not hold by descent from his mother, and did not have a legal title of any kind, but the legal title was vested in the executors as if the land were personalty. In order to carry out the partition agreement, an executors' deed was deemed essential. It was believed that a deed from two Ann. Cas. 1912C, 671. The plaintiff says there was no considera tion for the deed. The absence of a consideration to the executors merely goes to the validity of the instrument considered as an executors' deed, which is not material. As between F. H. Haid and his wife, no consideration was necessary. Not being indebted to anybody, and there being no fraud in the transaction, F. H. Haid could place the title to his share of his mother's estate wherever he desired. The presumption is the land was a gift from husband to wife. Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Clester v. Clester, 90 Kan. 638, 135 Pac. 996, L. R. A. 1915E, 648; Page v. Pierce, 92 Kan. 149, 153, 139 Pac. 1173. In making application for a loan F. H. Haid stated the land belonged to him, and that he had inherited it. The representation was not binding upon Elizabeth Haid. Elizabeth Haid permitted her husband to manage the farm, collect rents, pay taxes, etc. The finding is that she did this with the knowledge and with the consent which a wife and mother usually has and gives concerning business matters of her husband when he is managing her property. Conduct of this character is not sufficient to defeat a title once acquired, and, whatever the conduct of Haid and his wife may have been subsequent to the delivery of the deed, the findings conclusively show that title then vested in her. The judgment of the district court is affirmed. All the Justices concurring. A. M. Keene, of Ft. Scott, for appellant. W. F. Sapp and A. S. Wilson, both of Galena, for appellee. PORTER, J. Ed Reynolds sued the New Century Zinc & Lead Mining Company, a corporation organized under the laws of Delaware, to recover damages for personal in AMERICAN SURETY CO. OF NEW YORK juries. In his petition he described the com V. MARYLAND CASUALTY CO. (No. 19925.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) [Ed. Note. For other cases, see Corporations, Cent. Dig. 88 1953-1957, 1975; Dec. Dig. 505.] 2. CORPORATIONS 505-MISNOMER-WAIV ER-VALIDITY OF JUDGMENT. The New Century Zine & Mining Company, a corporation organized under the laws of Delaware, was sued by an employé to recover damages for personal injuries. The petition and summons described the defendant as the "New Century Mining Company," and the petition alleged that it was a Kansas corporation. The summons was served upon the president of the company; an answer was filed in the name of the "New Century Mining Company" as defendant, and the cause was tried and judgment renOn appeal to the dered against defendant. Supreme Court, the judgment was affirmed. In no manner was the misnomer brought to the attention of the district or the Supreme Court. Held, that failure to file a plea in abatement waived the misnomer, and that after the judgment it is too late for the defendant, or for a casualty insurance company in privity with it, to question the fact that the company was sued, or the validity of the judgment. pany as the "New Century Mining Company," and alleged that it was a Kansas corporation. The summons contained the same misnomer, but was served personally upon the The Maryland president of the company. 1. CORPORATIONS 505-MISNOMER-WAIV- Casualty Company had issued a policy to the New Century Zinc & Lead Mining ComER-VALIDITY OF JUDGMENT. Where process is served against a defend-pany indemnifying it from loss by liability ant corporation in the wrong name and it an- for injuries to its employés, and agreeing to swers in that name, a judgment taken against The sumit is as valid as if rendered against it in the defend at its own cost all suits brought by right name. The failure to plead the misnomer employés against the company. mons and papers in the Reynolds case were waives it. sent to the attorneys for the casualty company at the request of the latter company, and they filed an answer for the "New Century Mining Company" and defended the action in the district court, where Reynolds obtained a judgment. The true name of the mining company was not disclosed by any pleading filed in its behalf, but an appeal was taken to the Supreme Court by the attorneys for the casualty company; the title The superof the cause remaining the same. sedeas bond, however, was signed in the true name of the defendant company as prinThe New Century Zinc & cipal, and also by the American Surety Company as surety. Lead Mining Company advanced the premium for the supersedeas bond and the premium for its renewal a year later, but the casualty company reimbursed it for these payments. The judgment in Reynolds' favor 1913. Reynolds v. Mining Co., 90 Kan. 208, was affirmed in this court at the July term, 133 Pac. 844. When the mandate was sent down, the New Century Zinc & Lead Mining Company satisfied the judgment and costs. It obtained the money to do this by a loan made by the American Surety Company, which had signed the supersedeas bond. In order to secure the loan or advancement of the money, it assigned to the surety company its interest in the policy of insurance issued by the American Casualty Company. That company denied any liability to the surety company on the policy, and the surety company brought this action to recover the amount of the judgment and costs in the A jury returned a verdict Reynolds case. in favor of the surety company, and judgAppeal from District Court, Cherokee ment was rendered in its favor, from which County. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1953-1957, 1975; Dec. Dig. 505.] 505 MISNOMER 3. CORPORATIONS [Ed. Note. For other cases, see Corporations, Action by the American Surety Company of New York, a corporation, against the Maryland Casualty Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed. the casualty company has appealed. [1-3] We are unable to discover any reason why the judgment should not be affirmed, or any way by which the casualty company can escape liability on its policy of indemnity. The judgment in the Reynolds case was en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes forceable against the New Century Zinc &, the defendant. Some of the special questions Lead Mining Company notwithstanding the submitted by the defendant might well have company was sued in the wrong name. The been refused, but the jury seem to have ansummons was served upon its president, answered them properly. Their affirmative ananswer was filed, and the action contested swer to the question whether Reynolds ever on its merits as though there had been no brought an action against the New Century misnomer. If the company objected to being Zinc & Lead Mining Company was correct. sued in the wrong name, it should have filed He sued that company under the wrong a plea in abatement, or called the court's name; the company waived the misnomer attention to the mistake in some way. Fail- and defended the action. After the judgment ing to do so, or to disclose its true name, it it is too late for that company, or for the waived the misnomer. School Dist. No. 14 v. casualty company which was in privity with Griner, 8 Kan. 224; Clark v. Clark, 19 Kan. it, to question the fact that the company 522; Wilton Town Co. v. Humphrey, 15 Kan. was sued. The same may be said respecting 372. The court would have authorized an the special question whether defendant ever amendment correcting the mistake if its at- issued an indemnity policy to a corporation tention had been challenged to it. Service by the name of the New Century Mining v. Bank, 62 Kan. 857, 860, 62 Pac. 670; Company. The jury answered yes; and, unWeaver v. Young, 37 Kan. 70, 14 Pac. 458. der the court's instructions and the law as But to have the mistake corrected was not we have stated it, for every purpose connectwhat either the mining company or the cas-ed with this case the answer, though not litualty company desired. From the statement erally correct, is substantially so. The quesof counsel for defendant at the trial of the tion should not have been submitted, for no present case, it appears that the casualty one claimed that the policy was issued to a company thought some advantage could be company of that name, so it makes no difgained by defending the Reynolds action inference how it was answered. The defendthe name under which he sued the mining ant's liability on the policy could not be afcompany and by concealing the misnomer. fected by any of the answers returned by the It is well-established law that where process jury. is served upon a defendant in a wrong name, and he answers in the name sued upon, a judgment against him is as binding as if rendered against him in his right name. If he DON v. PFISTER. (S. F. 7713.) fail to plead the misnomer, he waives it. 37 (Supreme Court of California. Feb. 2, 1916.) Cent. Dig. cc. 2607-2610, § 177, and cases cited. Although when the Reynolds judgment was affirmed the American Surety Company became liable on the supersedeas bond, its liability was that of a surety, and the mining company, the judgment debtor, was primarily liable. Officers of the surety company and of the mining company testified to the fact that the money to pay the judgment was obtained by a loan from the surety company, and that the policy was assigned and transferred as security for the loan. It made no difference whether any note was given or any charge or account made. There was no ground upon which to sustain the demurrer to the evidence. It is difficult to see how the trial court could have erred in charging the jury that the New Century Zinc & Lead Mining Company was the same thing as the New Century Mining Company. For all purposes of this action they are the same, or, putting it another way, the mining company's legal name is as stated in its charter, but it is sometimes known by the name in which it was sued and the judgment in Reynolds' favor rendered; because the fact remains that the suit was defended through the courts just as though the company had been sued in its charter name. The judgment is affirmed. All the Justices concurring. PRIMARY ELECTIONS 1. ELECTIONS 19 Under Const. art. 2, § 22, declaring that the Legislature shall have power to enact laws relative to the election of delegates to conventions of political parties, the Legislature is authorized to make it a condition to voting in a primary election that the voter state in his affiparty with which he intends to affiliate at the davit of registration the name of the political ensuing primary election. [Ed. Note. For other cases, see Elections, Cent. Dig. § 14; Dec. Dig. 19.] 2. ELECTIONS STRUCTION. 120- PRIMARY LAW-CON The primary act of June 16, 1913 (St. 1913, p. 1379), referred to and made the provisions of Pol. Code, § 1096, so far as consistent with the provisions of the act, applicable to primary should state in their affidavit of registration the elections. That section provided that electors name of the political party with which they intended to affiliate at the ensuing primary elecislature struck out such provisions from sec tion. Held, that the fact that a subsequent Legtion 1096 does not affect the primary law; the provisions having been incorporated in it by reference. [Ed. Note.-For other cases, see Elections, Dec. Dig. 120.] In Bank. Original application by Eugene M. Don for a writ of mandate against Henry A. Pfister. Writ issued. Thomas V. Cator, of San Francisco, for petitioner. Warren Olney, Jr., Cullinan & Hickey, Sullivan & Sullivan and Theo. J. The instructions were quite favorable to Roche, all of San Francisco, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |